FPSLREB Decisions

File: 166-2-27858 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN WARREN WILLIAM WOLFE Grievor and TREASURY BOARD (National Defence)

Employer

Before: J. Barry Turner, Board Member For the Grievor: Kevin Banks, Counsel For the Employer: Harvey Newman, Counsel Heard at Victoria, British Columbia, March 26, 1998.

Decision Page 1 DECISION Dr. Warren Wolfe, a former Assistant Professor, UT-3 classification level as a university teacher at the former Royal Roads Military College (RRMC), Department of National Defence (DND), Victoria, British Columbia, is grieving under Article C-8.03(12) of the first collective agreement between the Treasury Board and The Canadian Military Colleges Faculty Association (CMCFA), Group: University Teaching (All Employees), Code: 227/95, expiry date: March 31, 1997, a breach of the Work Force Adjustment Directive (WFAD).

Article C-8.03(12) reads: C-8.03 The following directives, policies or regulations, as amended from time to time by National Joint Council recommendation and which have been approved by the Treasury Board of Canada, form part of this Collective Agreement:

. . . (12) Work Force Adjustment Policy.... . . . Dr. Wolfe is claiming that, when he was declared surplus pursuant to the WFAD in February 1995 (Exhibit G-1, Tab 5), he should have received pay in lieu of unfulfilled surplus period (PIL) under section 7.2 of the WFAD. Section 7.2 reads: 7.2 Pay in lieu of unfulfilled surplus period 7.2.1 When a surplus employee offers to resign before the end of the surplus period on the understanding that he or she will receive pay in lieu of unfulfilled surplus period, the deputy head may authorise a lump-sum payment equal to the surplus employee’s regular pay for the balance of the surplus period, up to a maximum of six months.

7.2.2 Approval of pay in lieu of unfulfilled surplus period is at the discretion of management, but shall not be unreasonably denied.

7.2.3 The deputy head shall ensure that pay in lieu of unfulfilled surplus period is only authorized where the employee’s work can be discontinued on the resignation date and no additional costs will be incurred in having the work done in any other way during that period.

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Decision Page 2 7.2.4 An employee relinquishes any priority rights for reappointment upon acceptance of his or her resignation.

7.2.5 An individual who receives the pay in lieu of unfulfilled surplus period and who, during the period to be covered by the lump-sum payment, is reappointed to that portion of the Public Service of Canada specified from time to time in Schedule I, Part I of the Public Service Staff Relations Act, shall reimburse the Receiver General for Canada by an amount corresponding to the period from the effective date of re-appointment to the end of the original period for which the lump sum was paid.

7.2.6 When an employee has been declared surplus, a deputy head may identify another non-surplus employee who volunteers to leave the Public Service in place of the first employee. The volunteering employee shall be eligible for the pay in lieu of unfulfilled surplus period which he or she would have received had he or she been declared surplus under the terms of this directive but shall not be eligible for the separation benefit or other lump-sum payments authorized under this directive. This transaction must result in a net reduction in the size of the department.

Dr. Wolfe’s grievance signed on September 22, 1995, Exhibit G-1, Tab 14, entered on consent, reads: 1. On 10 February, 1995, the grievor was declared a surplus employee by the Commandant of Royal Roads Military College (RRMC), Captain(N) Bindernagel, in anticipation of the closure of the College on 31 August, 1995. The initial period was for a six month duration, expiring on 10 August, 1995.

2. On 4 August, 1995, the grievor received a registered letter from Capt. Bindernagel, dated 25 July, 1995, in which the grievor was informed that, consequent to recent legislation, a new six month surplus period was being granted, commencing on 26 July, 1995, and expiring on 25 January, 1996, at which time, if no reasonable job offer had been made to the grievor, the grievor would be placed on unpaid surplus status for a further twelve months.

3. In the 25 July letter, Capt. Bindernagel also noted that the grievor was eligible to accept the CRP [Civilian Reduction Program] in the next 60 days and that the offer of the CRP would be withdrawn if not accepted by 25 September, 1995.

4. On 24 August, 1995, the grievor wrote to Capt. Bindernagel to inform him of the grievor’s intention to accept

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Decision Page 3 the CRP and to resign his position in the Public Service. Further, the grievor noted that as a surplus employee who had offered to resign prior to the expiration of the surplus period, then under Sec 7.2 of the WFAD the grievor was eligible to receive pay-in-lieu of unfulfilled surplus period.

5. On 29 August, 1995, at a meeting with Capt. Bindernagel, the grievor again declared his desire to accept the CRP, to resign from the Public Service and to apply for pay-in-lieu under the WFAD. The grievor also noted that according to the terms and conditions set for the offer of the CRP the 60 day window did not expire until 4 October, 1995, and therefore the effective date of resignation could be any time up to that date. The grievor submitted to Capt. Bindernagel a completed WFAD form claiming pay-in-lieu and a form accepting the CRP which had been completed except for the disputed effective date of resignation.

6. Capt. Bindernagel responded at the meeting to say that although he was of the opinion that a surplus employee who accepted the CRP was not eligible for benefits under the WFAD, he would present the grievor’s claims to NDHQ and would respond in writing with the decision regarding the date of resignation and the claim for pay-in-lieu.

7. At the conclusion of that meeting, Capt. Bindernagel warned the grievor that he should resign effective 31 August, 1995, or else he would be subject to reassignment of duties at the pleasure of the Commander, Base Esquimalt. The grievor responded that he was willing to accept whatever duties were assigned that were in accordance with the UT Collective Agreement and the normal duties assigned to a UT.

8. On 6 September, 1995, the grievor received a letter from Capt. Bindernagel dated 31 August, 1995, which stated that indeterminate employees may opt for either the CRP entitlements or for the WFAD conditions, but not both. The letter states that the Employer had made clear and unequivocal stipulations that CRP payments may not be combined with the WFAD benefits.

9. On 6 September, 1995, Mr. Neil Bright, the Civilian Personnel Officer at Base Esquimalt informed the grievor that whereas his office had been informed by Capt. Bindernagel in mid August, 1995 that the grievor was unwilling to accept any reassignment of duties, whereas RRMC was closed on 31 August, 1995, and whereas the grievor had not been reassigned new duties, Mr. Bright had terminated pay to the grievor effective 31 August, 1995.

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Decision Page 4 10. The grievor noted his belief that he was performing the normal duties of a UT in that he was actively performing research according to the terms and conditions of his employment. The grievor further noted that Capt. Bindernagel’s statement regarding his willingness to accept new duties was false and that the grievor felt that Mr. Bright’s actions were unauthorized and wrong.

11. Sec 7.2(1) of the PSCA grants to the Governor in Council the authority, notwithstanding any Act of Parliament except the Canadian Human Rights Act, or any directive, policy, regulation or agreement made under such Act, to fix the terms and conditions of a program respecting early departure incentives, unpaid surplus status, lay offs and related matters arising from the February 27, 1995 budget.

12. Sec 7.1(2) of the PSCA makes every surplus DND employee subject to the payment, terms and conditions of the CRP and excludes such employees from payments under Sec 7.2 of the Act.

13. Sec 7.1(1) of the PSCA grants to the Treasury Board the authority, notwithstanding any Act of Parliament except the Canadian Human Rights Act, to fix the terms and conditions of the CRP. It is noted that no provision is made under the Act that would allow the Treasury Board to set terms and conditions that would be contrary to or supercede any directive or agreement made under relevant Acts, such as the PSSRA, in particular, the UT Collective Agreement and the WFAD of the NJC.

14. Sec 7.2(2) and (3) of the PSCA specify precisely how amendments may be made to the WFAD.

15. The grievor claims that the Employer, the Department of National Defence, Capt. Bindernagel and Mr. Bright have acted improperly in that:

a. the Employer’s denial of the grievor’s claim for pay-in-lieu of unfulfilled surplus period under Sec 7.2 of the WFAD of the NJC is unreasonable and contrary to Article C8 of the UT Collective Agreement;

b. the Employer’s stipulation that CRP payments may not be combined with WFAD benefits is unauthorized under the existing legislation and contrary to Article C8 of the UT Collective Agreement;

c. Capt. Bindernagel made false statements that caused the grievor grave stress and unwarranted concern for his financial stability;

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Decision Page 5 d. Capt. Bindernagel misapplied the terms and conditions of the CRP and insisted that the grievor accept the CRP prior to the 60 day window;

e. Mr. Bright terminated pay to the grievor based on false and unsubstantiated verbal statements and made no attempt to verify the information;

f. Mr. Bright terminated pay to the grievor while the grievor was a surplus employee and prior to the authorized period of unpaid surplus status; and

g. Capt. Bindernagel’s and Mr. Bright’s actions constitute abuse of authority and, hence, harassment under Clause A10 of the UT Collective Agreement.

It was agreed by both parties that issues No. 15c to 15g were no longer issues and should not be before me.

The grievor initially requested the following corrective action: 1. that the Employer be directed to pay to the grievor pay-in-lieu of unfulfilled surplus period for the period from 29 September, 1995, until 25 January, 1996;

2. that Capt. Bindernagel and Mr. Bright be reprimanded for harassment and that each apologize in writing to the grievor for their actions and the harm they caused;

3. that the Employer be directed to make a clear statement directing managers and assuring surplus employees that their pay will not be subject to unwarranted termination prior to the beginning of the legislated unpaid surplus period.

It was also agreed that redresses No. 2 and 3 in the requested corrective action were no longer issues and should not be before me.

The parties submitted a signed Partial Agreed Statement of Fact that reads: 1. The Canadian Military Colleges Faculty Association (“CMCFA”) is the certified bargaining agent on behalf of all employees of the employer in the University Teaching Group (“UT’s”, comprising the “UT Group”), Scientific and Professional Category, as described in the certificate issued by the Public Service Staff Relations Board on May 24, 1991.

2. The first collective agreement between the CMCFA and the employer (found at Tab 1) was in force from April 1,

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Decision Page 6 1995 to March 31, 1997. That agreement incorporated by reference the Work Force Adjustment Policy, also known as the Work Force Adjustment Directive (“WFAD”) (found at Tab 2).

3. At the time that the first collective agreement came into force, bargaining unit members were employed at three campuses in the Canadian Military College System: the Royal Military College of Canada, located in Kingston, Ontario; Royal Roads Military College, located in Esquimalt, British Columbia; and College Militaire Royal de St-Jean, located near Sherbrooke, Quebec. The grievor worked at Royal Road Military College.

4. The duties of a UT include teaching, research, and service on committees of the college. The bulk of the research carried out by UT’s is performed between May and September, when UT’s do not normally have teaching responsibilities.

5. The grievor, Dr. Warren Wolfe was first appointed as Assistant Professor (UT2 level) on September 1, 1975. He was promoted to UT3 in 1980. His areas of research are combinatorics, computer modeling and simulation.

6. On February 22, 1994, the Government of Canada announced a budget which included significant reduction to the budget of the Department of National Defence (“DND”). As a result of this budget allocation, the DND made plans to reduce its civilian work force by 8400 employees. Those plans included closing Royal Roads Military College and College Militaire Royal St-Jean.

7. At the time of this budget announcement, the Minister of National Defence released a Budget Impact Statement which included a proposed Civilian Reduction program which would include an offer of a special departure incentive package to indeterminate, full-time, part-time and seasonal civilian employees.

8. Neither the employer nor DND negotiated any terms of the CRP with the CMCFA.

9. No changes to the collective agreement were made in connection with the CRP.

10. Other than the changes to the WFAD implemented under the Budget Implementation Act, 1995, no amendments relating to the WFAD was made to the collective agreement.

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Decision Page 7 11. At the time that he delivered his CRP acceptance form, Dr. Wolfe spoke briefly with Ms. Comberbach. He told her that he intended to file a grievance over the employer’s denial of his request for pay in lieu of unfulfilled surplus period.

12. On September 25, 1995 Dr. Wolfe filed the grievance found at Tab 14.

13. On September 29, 1995 Dr. Wolfe’s resignation from the public service took effect.

14. Dr. Wolfe received the CRP benefits set out in the document at Tab 15.

15. The parties agree that the grievance procedure has been completed and that this matter is properly before the adjudicator. Documents relating to the grievance procedure can be found at Tabs 16 - 20.

The hearing lasted one day with one witness testifying and six exhibits submitted into evidence.

Opening Statement by the Grievor Mr. Banks stated that the issue before me is whether or not an employee who accepts a separation incentive under the Civilian Reduction Program (CRP), is also eligible for PIL under that same employee’s collective agreement. He stated there are only two ways an employee could be precluded from eligibility; one, if legislation is passed to amend the collective agreement, or two, if the parties negotiate a change to the collective agreement. He argued in the situation before me neither is the case. Dr. Wolfe must therefore be eligible for PIL. Mr. Banks argued that the legislative amendments after the 1995 February federal budget left section 7.2 of the WFAD untouched and that the Early Departure Incentive (EDI) announcement at the same time did not apply to persons who took the CRP.

Opening Statement by the Employer Mr. Newman argued the CRP was merely an incentive plan to assist DND to reduce its workforce in 1995 and is not a collective agreement matter, in spite of the WFAD and its “endless” job offer element. He said the CRP was financially more generous than the WFAD and was available to all employees in DND; the EDI was “the

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Decision Page 8 second richest program”, and the WFAD “the least rich program”. He added I will see that the Budget Implementation Act, 1995 essentially amalgamated the CRP and the EDI, and that an employee who takes the CRP is precluded from a PIL under the WFAD. He reminded me that PIL is a discretionary payment in the event the Budget Implementation Act, 1995 does not preclude Dr. Wolfe from PIL.

Both parties agreed that the only “live issue” before me is whether or not Dr. Wolfe is entitled PIL.

Summary of Evidence Dr. Wolfe identified his first letter in November 1994 from Captain (N) D.B. Bindernagel, Commandant, RRMC (Exhibit G-1, Tab 3) offering him the CRP. Dr. Wolfe later received information about the CRP from Ottawa (Exhibit G-1, Tab 4) and referred specifically to the 'Elements of the Package' on pages 3 and 4 of Tab 4. The grievor let this first CRP offer lapse since, at the time, he preferred to continue to be a public servant.

Dr. Wolfe identified a February 1995 letter from the Commandant declaring him surplus pursuant to the WFAD (Exhibit G-1, Tab 5). He continued to teach at the RRMC until May 1995 and then began summer research, hoping for a job offer within the Public Service. He received another letter in July 1995 extending his surplus period for six months, that also offered the CRP option again (Exhibit G-1, Tab 6). He testified that he discussed the CRP with Ms. Carol Cumberbach from the Base Civilian Personnel Office and felt, at the time, the CRP was a private offer from his employer and not part of his collective agreement, therefore he felt PIL would still apply to him. Dr. Wolfe said Ms. Cumberbach told him, in her opinion, employees who accepted the CRP were not eligible for PIL. He identified a fax sheet he received in August 1995 from Ms. Cumberbach (Exhibit G-1, Tab 7) that reads, in part: • surplus employees who accept the CRP are not eligible for ERI, pay in lieu of unfulfilled surplus period (P.I.L.), or any of the other lump sum payment under the WFAD....

After he received Tab 7, Dr. Wolfe questioned the legislative authority for this interpretation, researched the legislation, and felt Ms. Cumberbach’s interpretation was wrong.

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Decision Page 9 Dr. Wolfe wrote Captain (N) Bindernagel on 24 August 1995 (Exhibit G-1, Tab-8) agreeing to accept the CRP offer and also claiming that he was eligible for PIL under the WFAD. Paragraph 3 of Tab 8 reads: The Budget Implementation Act, 1995, amends the Public Sector Compensation Act so that, under Sec 7.1(2)(b), surplus DND employees are subject to the payment and the terms and conditions of payment of the CRP rather than the general EDI programme under Sec 7.2. I note that other surplus employees who have received early departure incentives under the CRP or equivalent programmes have been given pay-in-lieu; therefore, the CRP does not, in itself, exclude pay-in-lieu. I note further that the WFAD directive stipulates that the granting of pay-in-lieu is at the discretion of management, but that approval shall not be unreasonably denied. If the employer has decided to deny me pay-in-lieu, please respond by giving the reasons for such denial.

Mr. Newman objected that reference to what other surplus employees may have received was hearsay. I agreed.

Dr. Wolfe met with Captain (N) Bindernagel on 29 August, who advised him, for the time being, to leave his retirement date blank on the CRP request form (Exhibit G-1, Tab 10) until the Captain clarified the sixty-day time frame with headquarters in Ottawa and the grievor’s PIL eligibility request (Exhibit G-1, Tab 9). Dr. Wolfe met on September 6, 1995 with Ms. Cumberbach to decide on his resignation date and to get Captain Bindernagel’s response (Exhibit G-1, Tab 11) to the grievor’s request for PIL in addition to the CRP. Dr. Wolfe re-submitted his CRP form on September 14, 1995 after some confusion surrounding the employer’s decision to stop paying him. Dr. Wolfe grieved on September 22, 1995 (Exhibit G-1, Tab 14).

Dr. Wolfe received a CRP financial package of $99,216.55 (Exhibit G-1, Tab 15). He identified the employer’s second-level reply dated 12 March 1996 to his grievance (Exhibit G-1, Tab 16). The grievor also identified the employer’s presentation to the National Joint Council (NJC) (Exhibit G-1, Tab 18), the NJC’s response dated April 3, 1997 (Exhibit G-1, Tab 19), and the reference to adjudication (Exhibit G-1, Tab 20).

During cross-examination, Dr. Wolfe agreed that, in November 1994, when he was first offered the CRP, the RRMC was going to close. There were no work

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Decision Page 10 opportunities for him at Royal Military College in Kingston, Ontario. He also agreed that management never led him to believe that he would be given PIL.

Mr. Newman entered, on consent, a February 1994 budget-impact National Defence statement (Exhibit E-1); a CRP request form showing the effective date of resignation, 29 September 1995, for Dr. Wolfe (Exhibit E-2); a CRP bulletin for human resource personnel dated 01 September 1995 (Exhibit E-3) interpreting how the CRP applies; terms and conditions of the CRP (Exhibit E-4) and a Department of Finance Fact Sheet, undated (Exhibit E-5) that reads in part: • Cash-Based Early Departure Incentive: Comparable to private-sector practice, a cash-based early departure incentive program will be made available for three years to surplus employees in departments designated by Treasury Board as “most affected” because they are unable to meet their reductions through existing or workforce adjustment mechanisms. The National Defence Civilian Reduction Program will be folded into this regime and its benefit structure will be brought in line on March 31, 1996.

At this point in the hearing, I allowed a free flow of arguments. Mr. Newman referred me to Exhibit G-1, Tab 22, an extract from the Budget Implementation Act, 1994, assented to 15th June 1994, that amended the Public Sector Compensation Act (PSCA) to introduce the CRP.

Counsel asked me not to confuse capital 'P' in Program in section 5 of the Budget Implementation Act, 1994 with the small 'p' in program in the definition of program in section 2 of the Budget Implementation Act, 1995, assented to 22 June 1995, (Exhibit G-1, Tab 23) that again amended the PSCA to introduce the EDI Program.

Mr. Newman noted that an exception was made under section 2 of the Budget Implementation Act, 1995 for the CRP but “no other payment may be offered or given to that employee....” By “no other payment”, Mr. Newman argued this meant no PIL.

Mr. Newman then referred me to an Order-in-Council, P.C. 1995-1086, June 27, 1995, an Order Fixing the Terms and Conditions of the Early Departure Incentive

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Decision Page 11 Program (Exhibit G-1, Tab 25), section 7, page 4, under the heading 'Ineligibility', that in his mind clearly indicates Dr. Wolfe is not eligible for PIL.

Mr. Newman argued the CRP was abolished in 1995 as a separate program, but its conditions and benefits were kept under the EDI in 1995, allowing Dr. Wolfe to still qualify for CRP. He added however that there was a limit to the “largesse of Her Majesty”.